Vicarious Liability

A THEORY OF VICARIOU S LIABILITY
J.W . N EYERS *This article proposes a theory of vicarious liability which attempts to explain the central features and limitations of the doctrine. The main premise of the article is that the common law should continue to impose vicarious liability because it can co-exist with the current tort law regime that imposes liability for fault. The author lays out the central features of the doctrine of vicarious liability and examines why the leading rationales (such as control, compensation, deterrence, loss-spreading, enterprise liability and mixed policy) fail to explain or account for its doctrinal rules. The author offers an indemnity theory for vicarious liability and examines why the current rules of vicarious liability are limited in application to employer-employee relationships and do not extend further. It is proposed that the solution to the puzzle of vicarious liability rests within the contractual relationship between employer-employee and not the relationship between the employer and the tort victim. The proposed indemnity theory implies a contract term that indemnifies the employee for harms suffered in the course of his or her employment. Vicarious liability then follows from an application of the contractual concepts of subrogation and indemnity to the particular relationship between employee, employer and tort victim. Finally, the article discusses and attempts to resolve the possible criticisms that may follow the indemnity theory, including concerns that it is in conflict with leading decisions, including Lister v. Romford, Bazley v. Curry and Morgans v. Launchbury.

Assistant Professor of Law, University of Western Ontario. An earlier version of this article was presented to the Tort Law section of the 2004 SLS Conference in Sheffield. The author would like to thank the participants in that section for their helpful questions and suggestions. The author would also like to thank Vaughan Black, Rande Kostal, John Murphy, Stephen Pitel, Eoin Quill, Lionel Smith and Robert Stevens for their comments on earlier drafts of this article. The usual disclaimer applies.

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...submitted to prof. manjula batra |
LAW OF TORTS PROJECT |
VICARIOUSLIABILITY |
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SUBMITTED BY:VAIBHAV PRATAP SINGHFIRST SEMEMSTER, 2012BA., LL.B. (HONS.) |
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ACKNOWLEDGEMENT
I would take this opportunity to thank the people who helped me in making this project which has been a learning experience. In that endeavour, first and foremost I would express my gratitude toward my professor of Law of Torts Ms Manjula Batra. Her immense knowledge and teaching skills along with her helping disposition are where all of this stemmed from. Next, I would thank my seniors in the faculty who gave us guidelines as to how to go about the research. These are the people who were always there with me in the making of this project. Heartfelt thanks to all the above-mentioned people.
INDEX OF AUTHORITIES
Books and Journals referred:
1. Salmond, Torts, 18th Ed
2. HOLMES Common Law, pp. 179 (180)
3. The Law of Torts by Ratanlal and Dhirajlal
4. Law of Torts by Dr R. K. Bangia
5. Law of Torts by B.M.Gandhi
Websites referred:
1. www.legalserviceindia.com
Cases:
1. Brook v. Hook (1871) LR 6 Ex 89
2. Keighly Maxsted &amp; Co. v. Durant (1901) AC 240 p.260 : 84 LT 777 (HL)
3. PER LOCH, J., in Rani Shamasundari Debi v. Dukhu Mandal (1869) 2 Beng LR (AACJ) 227 (229)
4. Bird v. Brown (1850) 4 Ex 786 (799); Buron v. Denman (1848) 2 Ex 167
5. Baxi Amrik Singh v. The Union of India (1973) 75 P.L.R. 1 at...

...A2 law: tort: VicariousLiability Question 2-Fairness/Unfairness.
Vicariousliability arises when one party is responsible for the tort of another. This situation occurs frequently when an employer is held responsible for the torts committed by an employee. An employer can only be held responsible for the torts of an employee, not for an independent contractor.
There are also some rules that must be satisfied. First it must be proven that the tortfeaser is an employee. The act the tortfeaser (employee) carried out must be tortuous or criminal. The tortuous or criminal act must have been during the course of employment.
There are 3 tests to establish whether an individual is an employee or an independent contractor these are the control test, integration test and the economic reality test, which is also known as the multiple test.
The control test analyses who has control over the way that the work is carried out. If the employer sets out how the work is to be done and when it is to be done by then the courts are more likely to consider the person carrying out the work as an employee. However, if it is up to the person carrying out the work how to determine how and when it should be done, then that person is more likely to be considered an independent contractor by the courts and is therefore responsible for their own torts. This test was applied in Mersey docks v Coggins Ltd (1947)
The integration test looks...

...Employers Liability in Negligence
• May be personally liable to employees who injure themselves.
• May be personally liable to employees who are injured by another employee or sometimes by an independent contractor employed by the employer.
• May be vicariously liable if one employee is injured by another employee.
NOTE:
• Employees may also be able to recover from statutory workers compensation schemes.
• Employees’ rights at common law may be restricted by the same schemes.
• e.g. WorkCover Queensland Act 1996
Other Possible Causes of Action Against an Employer
• The tort of breach of statutory duty (separate tort).
• Breach of an express or implied term of the contract of employment (contracts).
• Non-employees may be able to sue an employer on general negligence principles or in some other select duty category.
• Employers may be vicariously liable to non-employees injured by employees.
Summary
• An employer may be:
• Personally liable in negligence to injured employees and third parties;
• Vicariously liable to employees and third parties injured by employees;
• Liable otherwise e.g. breach of statutory duty.
Why may employers be liable to employees both personally and vicariously?
• One answer: personal liability relates to negligence only; vicariousliability also relates to other torts e.g. conversion.
• More importantly: the historical context of the unholy trinity of defences once...

...1. Introduction
“Vicarious” means, “in place of another”. Although we are generally only liable for our own wrongful actions in certain circumstances a person who is not at fault can be held liable for the delict of another. This usually occurs in partnership, agency, motor car accidents and employment, these are instances where there is a special relationship between the person held accountable and the person who committed the delict which provides allows for the former to incur the liabilty.
The object of this assignment is to explain the principle of vicariousliability and show which instances it applies to. Reference will be made to decided cases and statutes.
2. Employer- Employee Relationship
The employer- employee relationship is one of the most common occurrences of cases of vicariousliability. The most accepted reason for conferring liability to the employer is that by assigning a task to the employee, the employer creates a risk of harm and is thus under a duty to ensure that the employee’s work does not cause injury or harm to others whilst carrying out his duties for the employer. This was established in Feldman (Pty) Ltd v Mall that:
“ a master who does his work by the hand of a servant creates a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy; that, because he has created this risk for his own ends he is under a...

...Seminar 7
VicariousLiability
The problem question deals mainly with the issue of VicariousLiability and Negligence. In order to advise Jerry one would have to explore the rules of vicariousliability, relevant statute law and case law which may apply.
Vicariousliability has been defined as the person who commits a wrong must be an employee and not an independent contractor, the employee must have committed a tort and the tort must have been in the course of employment.
The doctrine of ‘vicariousliability’ is a public policy that holds employers liable when a tort is committed by an employee in the course of their employment. This means that a victim of a tort can claim compensation from the employee’s company if it is proven to have been the employee’s fault that the tort occurred. There are three elements to the doctrine of vicariousliability, where the ‘employee and not an independent contractor’, ‘commits a tort’ and ‘in the course of employment’. There are 3 tests to establish whether an individual is an employee or an independent contractor. These are the control test, integration test and the economic reality test, which is also known as the multiple test.
In order to determine who is an employee versus who is an independent contractor, this is illustrated the case of Yewens v....

...Case note
Sexual abuse and the changing nature of vicariousliability
Case: Various Claimants v Institute of the Brothers of the Christian Schools [2012] UKSC 5: [2012] 3 W.L.R. 1319 (SC)
According to Steele, vicariousliability is defined as an employer being found liable for the tort of his or her employee, provided that tort is sufficiently connected with the individual’s employment. On the face of it, this definition seems straightforward and clear, however you only need to look at the plethora of cases which have come to light in recent years to see that the reality is very different. The case of Various Claimants v Institute of the Brothers of the Christian Schools, (CCWS) is the latest case which has served to further develop the doctrine of vicariousliability. I will begin this case note by setting out the facts of the case and what the court held. After analysing the reasoning of the court, I will explain why this case will have minimal implications on future ones.
Facts
This case concerns a group action by 170 men in respect of abuse to which they allege they were subjected at the School, by Brother James and by other brothers. The claims are against two groups of defendants. The first group consists of the managers of the school from 1973, who inherited the statutory liabilities of the former managers and entered into contracts of employment with the brother...

...To: Senior Attorney
From: Paralegal
Re: VicariousLiability
John Stokely is responsible for injuring the motorcyclist while driving a vehicle from AAA Auto Dealers. Employers are vicariously liable under the respondeat superior doctrine. In the respondeat superior doctrine, in most cases, an employer is responsible for the actions of employees performed within the scope of employment. John Stokely used the company’s vehicle for personal reasons, regardless of what they were, and negligently collided into and injured someone on a motorcycle. John Stokely is a sales executive for AAA Auto Dealers. Not only did he use the company’s car for personal reasons, his boss accompanied him on the visit to a family member’s house for dinner. The boss was excusing John Stokely’s behavior, allowing him to use company property for a different purpose other than what it was intended for. John Stokely’s boss accompanied him to his cousin’s house so it can be argued that John Stokely had “permission” to do what he wanted. The boss will be held responsible by the owner(s) of AAA Auto Dealers as well by allowing John Stokely to act outside of his job description.
For more research on this issue, Lexis Nexis can be used to find cases that relate to this scenario by entering different terms in the search engine. Vicariousliability for employers and respondeat superior are words that can be used to research cases, statutes,...

...﻿3. Principles on which vicariousliability is based
The doctrine of vicariousliability is based on principles which can be summed up in the following two maxims :
(a) Qui facit per alium facit per se :- The maxim means, ‘he who acts through another is deemed in deemed in law as doing it himself’. The master’s responsibility for the servant’s act had also its origins in this principle. The reasoning is that a person who puts another in his place to do a class of acts in his absence, necessarily leaves to determine, according to the circumstances that arise, when an act of that class is to be done and trust him for the manner in which it is done; consequently he is answerable for the wrong of the person so entrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done ; provided what is done is not done from any caprice of the servant but in the course of the employment.
(b) Respondeat superior :- Another maxim usually referred to in this connection is respondeat superior, i.e., the superior must be responsible or let the principal be liable. In such cases not only he who obeys but also he who commands becomes equally liable. This rule has its origin in the legal presumption that all acts done by the servant in and about his master’s business are done by his master’s express or implied authority and are, in truth, the act of the...